Is Mandatory Detention of Unlawful Entrants
Seeking Asylum Constitutional?
Updated October 20, 2020
Non-U.S. nationals (aliens) apprehended by immigration authorities when attempting to unlawfully enter
the United States are generally subject to a streamlined, expedited removal process, but may be placed in
“formal” removal proceedings and pursue asylum claims if found to have a credible fear of persecution.
In 2019, Attorney General (AG) William Barr, who has power to review adjudicatory decisions of the
Board of Immigration Appeals (BIA), the highest administrative body responsible for interpreting
immigration laws, concluded in Matter of M-S- that federal law requires the continued detention of aliens
screened for expedited removal who are transferred to formal removal proceedings pending adjudication
of their asylum claims. (Additional discussion of the AG’s decision can be found here.) Later that year, a
federal district court held in Padilla v. ICE that this mandatory detention scheme “violates the U.S.
Constitution” because it denies aliens who have entered the United States the opportunity to seek their
release on bond. This ruling was largely affirmed by the U.S. Court of Appeals for the Ninth Circuit in
March 2020, but the reasoning of these decisions—at least when applied to aliens apprehended shortly
after arriving in the United States—may be in tension with the Supreme Court’s ruling in DHS v.
Thuraissigiam, decided a few months later. The government has petitioned the Supreme Court for review
of the Padilla decision. In any event, at present, the Padilla decision means that unlawful entrants
transferred to formal removal proceedings for consideration of their asylum applications may not be
indefinitely detained by immigration authorities without a bond hearing.
Legal Background
The Immigration and Nationality Act (INA) authorizes, and in some cases requires, the Department of
Homeland Security (DHS) to detain aliens who are subject to removal. The immigration detention scheme
is multifaceted with different rules depending on whether an alien is arriving in the United States or
apprehended within the country, whether the alien has engaged in certain proscribed conduct, and whether
the alien has been issued a final order of removal.
An alien who is subject to removal is commonly placed in “formal removal” proceedings before an
immigration judge (IJ) within the Executive Office for Immigration Review (EOIR) of the Department of
Justice (DOJ). Under INA § 236(a), DHS’s Immigration and Customs Enforcement (ICE) “may” detain
the alien pending those removal proceedings, or release the alien on bond or the alien’s own
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recognizance. If ICE decides to maintain custody, the alien may request review of ICE’s custody
determination at a bond hearing before an IJ.
Under INA § 235(b)(1), however, arriving aliens and “certain other aliens” who recently entered the
United States without inspection are subject to expedited removal if they lack valid entry documents or
have tried to gain their admission by fraud or misrepresentation. An alien placed in expedited removal
may be ordered removed without a hearing unless the alien indicates an intention to apply for asylum or a
fear of persecution if removed to a particular country. INA § 235(b)(1) instructs that, if the alien is found
to have a credible fear of persecution, he or she “shall be detained for further consideration of the
application for asylum” in formal removal proceedings. Although detention is generally mandatory under
INA § 235(b)(1), DHS has authority to parole the alien “for urgent humanitarian reasons or significant
public benefit.” There is no administrative or judicial review of the parole decision. (Additionally, in
response to the COVID-19 pandemic, ICE has released aliens from custody who are susceptible to severe
illness, and the agency has received fewer detainees given the reduced number of immigration arrests.)
Over the years, immigration authorities and reviewing courts have taken differing views on the interplay
between the mandatory detention regime for aliens who are initially subject to expedited removal and the
discretionary detention regime that generally applies to aliens placed directly in formal removal
proceedings. If an alien is first screened for expedited removal, does he or she remain subject to the
mandatory detention requirements of INA § 235(b)(1) if transferred to formal removal proceedings to
pursue asylum claims? Or can DHS release all or some subset of these aliens on bond or their own
recognizance once transferred to formal removal proceedings?
In 2005, the BIA ruled in Matter of X-K- that INA § 235(b)(1)’s mandatory detention scheme applied to
arriving aliens (i.e., those apprehended at a port of entry) who were transferred to formal removal
proceedings after being found to have a credible fear of persecution, but not to “certain other aliens” who
entered the United States without inspection and were initially screened for expedited removal. The BIA
reasoned that, unlike arriving aliens placed in formal removal proceedings, “certain other aliens” first
screened for expedited removal do not fall within any of the classes of aliens enumerated by DOJ
regulations as ineligible for bond hearings.
But in 2018, the Supreme Court in Jennings v. Rodriguez read INA § 235(b)(1) as “unequivocally”
requiring the detention of all aliens first placed in expedited removal but then transferred to formal
removal proceedings. Even so, the Court did not decide whether the indefinite detention of aliens without
bond under INA § 235(b)(1) could violate the Due Process Clause—leaving it to lower courts to decide,
in the first instance, whether prolonged detention under that authority may be unconstitutional.
At least partially prompted by the High Court’s decision in Jennings, AG Barr issued a decision in Matter
of M-S- overturning the BIA’s earlier opinion in Matter of X-K-. (Though responsibility for administering
federal immigration laws is divided among several agencies, the AG’s rulings on questions of law are
controlling.) The AG ruled that aliens subject to expedited removal who are placed in formal removal
proceedings after a positive credible fear determination “remain ineligible for bond, whether they are
arriving at the border or are apprehended in the United States.”
Padilla v. ICE: Procedural History and Preliminary Injunction
Following the Supreme Court’s decision in Jennings but before the AG’s ruling in Matter of M-S-, a
group of asylum seekers who entered the United States without inspection and were placed in formal
removal proceedings after establishing a credible fear of persecution brought a class action lawsuit against
immigration authorities. The plaintiffs claimed, among other things, that they were subject to excessively
prolonged detention during their initial expedited removal screenings and upon their transfer to formal
removal proceedings, and that this prolonged detention violated their due process rights.
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The court initially granted the plaintiffs’ motion for a preliminary injunction requiring EOIR to (1)
conduct bond hearings for detained asylum seekers who entered the United States without inspection, and
who were initially screened for expedited removal and found to have a credible fear of persecution, within
seven days of a bond hearing request, and release any alien whose detention time exceeds that seven-day
limit; (2) place the burden of proof on DHS in those bond hearings to show why the alien should not be
released; (3) record the bond hearing and produce a transcript; and (4) produce a written bond decision
“with particularized determinations of individualized findings.” Citing the BIA’s decision in Matter of X-
K-, which at the time was still controlling on immigration authorities, the court declared that asylum
seekers determined to have a credible fear of persecution may “request release from custody during the
pendency of the asylum process.”
Following Matter of M-S-, the federal district court modified its injunction. But the district court
ultimately concluded that, notwithstanding the AG’s ruling in M-S- that all aliens placed in formal
removal proceedings after a positive credible fear screening are ineligible for bond, the plaintiffs had a
right to bond hearings because they were apprehended within the United States, and were thus “entitled to
due process protections.” The court also noted that although the Supreme Court in Jennings had read INA
§ 235(b)(1) as requiring detention without bond, the High Court did not decide whether that statutory
mandate was unconstitutional. Thus, the court affirmed its previously entered injunction and ruled that
INA § 235(b)(1)’s prohibition against release on bond of aliens placed in formal removal proceedings
after establishing a credible fear of persecution “violates the U.S. Constitution.”
The government appealed to the U.S. Court of Appeals for the Ninth Circuit. On March 27, 2020, the
Ninth Circuit affirmed, in part, and vacated, in part, the district court’s ruling. The Ninth Circuit agreed
with the lower court that the plaintiffs were constitutionally entitled to a bond hearing, declaring that
“once a person is standing on U.S. soil—regardless of the legality of his or her entry—he or she is entitled
to due process.” But the court held that there was insufficient evidence to justify imposing a seven-day
time limit in which to hold a bond hearing and certain other procedural requirements, and that the district
court failed to consider whether these requirements would burden the immigration courts. The court thus
directed the district court to consider the appropriate procedures that must be followed with respect to the
required bond hearings.
Future Judicial Developments
While the Supreme Court in Jennings ruled that DHS has statutory authority to detain aliens, potentially
indefinitely, pending their formal removal proceedings, the Court did not address constitutional arguments
against this framework. Both the Ninth Circuit and the district court in Padilla, however, have squarely
confronted that question, answering that INA § 235(b)(1)’s mandatory detention scheme is
unconstitutional because it denies aliens who have entered the United States the opportunity to challenge
their detention at bond hearings. The court rulings effectively bar DHS from indefinitely detaining
unlawful entrants without an opportunity to seek bond pending consideration of their asylum claims. The
Padilla rulings call into question the extent to which unlawfully present aliens in removal proceedings
have constitutional due process protections. On one hand, the Supreme Court has long recognized that
aliens who have physically entered the United States, even unlawfully, are “persons” under the Fifth
Amendment’s Due Process Clause. Due process protections generally include the right to a hearing and a
meaningful opportunity to be heard before deprivation of a liberty interest. But the Court has, at times,
suggested that the scope of due process may turn upon whether the alien has been admitted into the
United States or developed substantial ties to this country.
Furthermore, the Court has recognized that aliens at the threshold of initial entry, including those who are
detained within the United States pending determinations of their admissibility, have fewer constitutional
protections regarding their entry and removal, and are generally entitled only to whatever procedures
Congress provided by statute. For instance, in Shaughnessy v. United States ex rel. Mezei, the Supreme
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Court in 1953 upheld the indefinite detention of an alien seeking admission into the United States,
concluding that the alien had not made an “entry” despite being detained on Ellis Island, and could be
treated “as if stopped at the border.”
Distinguishing Mezei, the district court in Padilla determined that the plaintiffs were “non-arriving aliens”
because they were apprehended within the territorial boundaries of the United States, and thus entitled to
due process protections, and the Ninth Circuit upheld that conclusion. But more recently, in DHS v.
Thuraissigiam, the Supreme Court stated that only “aliens who have established connections in this
country have due process rights in deportation proceedings,” and held that an alien apprehended 25 yards
from the border after entering the United States unlawfully could be “treated for due process purposes as
if stopped at the border.” Other lower courts have similarly determined that “recent clandestine entrants”
who were apprehended within hours of entering the United States, and lacked substantial ties to this
country, were “assimilated to the status of an arriving alien” and had no constitutional protections
attaching to immigration proceedings based on their physical presence alone.
Even so, some courts have held that the constitutional limitations that apply to arriving aliens seeking
entry into the United States pertain only to their procedural rights regarding their applications for
admission, but do not foreclose the availability of certain fundamental rights. Thus, some courts have held
that aliens arriving in the United States have sufficient constitutional rights to challenge a potentially
indefinite detention, regardless of whether they had entered the country or developed substantial ties.
The government has petitioned the Supreme Court for review of the Ninth Circuit’s Padilla decision.
Among other things, the government argues that the Supreme Court in Thuraissigiam has rejected the
conclusion reached by the Ninth Circuit that an alien who has set foot on U.S. soil is entitled to
protections under the Due Process Clause. Citing Thuraissigiam, the government argues that an alien
apprehended shortly after entering the United States can be treated as an alien stopped at the border who
has limited constitutional protections. If the Supreme Court reviews the Padilla case, the Court may
consider whether the Ninth Circuit’s conclusion regarding the scope of due process protections available
to aliens apprehended near the border conflicts with Thuraissigiam.
Arguably, the Supreme Court’s decision in Thuraissigiam suggests that the Padilla plaintiffs, who were
apprehended shortly after entering the United States without inspection, have limited constitutional
protections and may be entitled only to those protections Congress provided by statute. Thus, the Court
could conclude that the potentially indefinite detention of asylum seekers authorized by INA § 235(b)(1)
is constitutionally permissible—at least as applied to aliens apprehended near the U.S.-Mexico border.
But it is less certain whether these constitutional limitations would apply to unlawful entrants encountered
further within the interior of the United States, given that they are more likely to have “established
connections,” although the Court has not squarely assessed the nature of those “connections” for purposes
of determining the protective reach of the Due Process Clause. In any case, if the Supreme Court reviews
Padilla, the Court could clarify the extent to which unlawful entrants may constitutionally challenge their
prolonged confinement pending consideration of their asylum claims.
Author Information
Hillel R. Smith
Legislative Attorney
Congressional Research Service
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